"if it was 2013 - when did I stop being Vice President?"

\Ve have been selective in the choice of issues for your consideration. We believe that
each one presented below merits your careful review before finalizing your report.
l- We do not believe that the report's treatment of President Biden's memory is accurate
or appropriate. The report uses highly prejudicial language to describe a commonplace
occurrence among witnesses: a lack ofrecall of years-old events. Such comments have no place
in a Department of Justice report, particularly one that in the first paragraph announces that no
criminal charges are "warranted'' and that "the evidence does not establish Mr. Biden's guilt." If
the evidence does not establish guilt, then discussing the jury impact of President Bi den's
hypothetical testimony at a trial that will never occur is entirely superfluous.
In fact there is ample evidence from your intervievv· that the President did well in
answering your questions about years-old events over the course offive hours. This is especially
true under the circumstances, which you do not mention in your report, that his interview began
the day after the October 7 attacks on Israel. In the lead up to the interview, the President was
conducting calls with heads ofstate, Cabinet members, members ofCongress, and meeting
repeatedly with his national security team.
The Special Counsel recognized the extraordinary juxtaposition ofthese events when he
"thank[ed]" the President "for being here and making this lime for us" given that there were "a
lot of other things in the world going on that demand your attention:· Interview Transcript
("Tr.''), Day Lat 3. Subsequently, far from being "hazy:' Report at 208. the President proceeded
to provide often detailed recollections across a ,vidc range of questions, from staff management
of paper flow in the \Vest Wing to the events surrounding the creation ofthe 2009 memorandum
on the Afghanistan surge. He engaged at length on theories you offered about the way materials
were packed and moved during the transition out of the vice presidency and between residences.
He pointed to flaws in the assumptions behind specific lines of questioning.
At the outset of the interview, you recognized that the questions you planned to ask
··relate to events that happened years ago.'' but nonetheless expressed your hope that the
President would '·put forth [his] best efforts and really try to get [his] best recollection in
response to the questions we ask.'' Tr.. Day I, at 4. It is hardly fair to concede that the President
would be asked about events years in the past. press him to give his ''best" recollections. and
then fault him for his limited memory.
The President's inability to recall dates or details of events that happened years ago is
neither surprising nor unusual, especially given that many questions asked him to recall the
particulars of staff work to pack. ship, and store materials and furniture in the course of moves
between residences. The same predictable memory loss occurred with other witnesses in this
investigation. Yet unlike your treatment of President Biden, your report accepts other
witnesses' memory loss as completely understandable given the passage of time. For example.
you accepted without denigrating John McGrail's failure to remember certain events while he
served as then-Vice President Biden's counsel: ''McGrail's memory of these events could well
have faded over the course of more than 6 years." Report at 238 n.923; see also id at 67. 69
(noting Mr. McGrail's failure to recall events despite emails that place him in the center of
various discussions). So, too, you accept the memory lapse of one of the President's personal
la"vyers who testified that in his initial search of the Penn Biden offices certain boxes were stored
in a locked closet, noting only that "his memory was fuzzy on that point." Id at 265. And the
events on which you found the lawyer's memory to be '·fuzzy'' occurred only a few months
before his interview. Id; see also id at 64, 66 (noting without comment the failures of
recollection by numerous staffers).
Your treatment of President Biden stands in marked contrast to the lack of pejorative
comments about other individuals. It is also in contrast to your own description ofthe
President's responses on other subjects as '·clear forceful testimony" that would be "compelling"
to a jury. Id. at 233.
Not only do you treat the President differently from other witnesses when discussing his
limited recall of certain years-ago events. but you also do so on occasions in prejudicial and
inflammatory terms. You refer to President Biden· s memory on at least nine occasions-a
number that is itself gratuitous. But. even among those nine instances, your report varies. It is
one thing to observe President Bi den's memory as being "significantly limited" on certain
subjects. Id. at 5. It is quite another to use the more sweeping and highly prejudicial language
employed later in the report. This language is not supported by the facts, nor is it appropriately
used by a federal prosecutor in this context.
We request that you revisit your descriptions of President Biden's memory and revise
them so that they are stated in a manner that is within the bounds of your expertise and remit.